A Comedy of Errors: Bail in the Magistrates’ Court

Bail decisions in the Magistrates’ Court are often where defendants’ naturally keen sense for injustice finds itself most acutely offended: recent research has shown that defendants may well be correct in their assessment of the justice, or lack thereof, in the lower courts.

Flawed Decision Making

In a report published in November of 2023, it was found that in more than 60% of decisions made in the Magistrates’ Court in relation to bail no reference was made to the legal test for bail, or indeed any element of the Bail Act 1976. This trend was particularly pronounced where the decision was made by a bench of lay Magistrates rather than District Judges, the former of whom referenced the legal framework in less than a third of their decisions. This is despite the statutory requirement in s5 of the Bail Act that reasons must be given for their decision. This is more than a question of procedure for its own sake – where no legal test was cited, more than a quarter of decisions led to a remand in custody.

This in itself can be frustrating for both defendants and practitioners, and even when Magistrates do give reasons in only 19.5% of cases where the Bail Act is referred to did decision-makers “explain their decision by setting out the exceptions in the Bail Act with specific reference to the facts of the case and the circumstances of the Defendant”. 

This systematic failure to justify decisions takes place against a backdrop of alarmingly rushed decisions. Data collected by the charity JUSTICE shows that 17% of cases where remand was the outcome last between 2 and 10 minutes.  Taken together, the swift and unexplained nature of these hearings conjures up an image of an almost kafkaesque approach to hearings. More prosaically, one must wonder whether two minutes is compliant with Criminal Procedure Rule 14.2(1)(d)(ii) which requires that remand hearings take ‘sufficient time’.

A recent investigation into the conduct of Magistrates’ Court hearings by Transform Justice, carried out using volunteer ‘courtwatchers’ who observed and recorded Magistrates’ Court hearings provides little reassurance. Observers were struck by:

“How isolated defendants were from court proceedings. Defendants were sometimes ignored, with those working in the court not making eye contact, not addressing the defendant until the very end of the hearing, being “cold” or “impersonal towards defendants or speaking about defendants as if they weren’t there”.

It is little surprise, then, that only 32% of defendants in bail hearings report having a good understanding of the process and what is taking place.

Flawed Outcomes

Statistics show that for 2023 a only 12% of defendants remanded into custody at the Magistrates’ Court went on to be sentenced to immediate custody. This is naturally problematic – to deprive a defendant of their liberty in a rushed hearing with little regard to the legislative framework only for the court to determine in due course that their offending did not warrant a custodial sentence. In contrast, 72% of those remanded at the Crown Court went on to be sentenced to immediate custody. Whilst this must to some extent be a function of the differing gravity of offending in the two venues, it may also point to a disparity in the manner in which remand decisions are made.

As well as creating issues of fairness and access to justice, it is clear that this approach to bail hearings has a knock on effect on the rest of the Criminal Justice System in that defendants are forced to apply to the Crown Court for a reconsideration of bail where it could have been granted at the first instance. Defence practitioners know all too well the process of having to apply for Crown Court bail in order to undo a hastily made decision by the Magistrates. That said, these hearings which tend to take place over a video link in the absence of a defendant may do little to dispel the accusations that these proceedings are Kafkaesque.

A Flawed Court?

It is clear that some form of change is necessary – in the specific domain of bail that could take the form of more comprehensive training for legal advisors, or perhaps a flow chart of some kind off the lay bench to follow.